IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015 INSTRUMENT OF INCORPORATION APOLLO CREDIT FUNDS ICAV

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1 IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015 INSTRUMENT OF INCORPORATION APOLLO CREDIT FUNDS ICAV AN UMBRELLA SCHEME WITH SEGREGATED LIABILITY BETWEEN SUB-FUNDS REGISTERED IN IRELAND ON 18 MAY 2016 As adopted on 31 MAY George's Dock IFSC Dublin D01 X5X0 Ireland EU_BUSINESS

2 INSTRUMENT OF INCORPORATION APOLLO CREDIT FUNDS ICAV AN UMBRELLA FUND WITH SEGREGATED LIABILITY BETWEEN SUB-FUNDS INDEX Page 1. INTERPRETATION OBJECT PRELIMINARY DEPOSITARY, AIFM AND MANAGER SHARE CAPITAL CONSTITUTION, RIGHTS, ASSETS AND LIABILITIES OF THE ICAV CONFIRMATIONS OF OWNERSHIP AND SHARE WARRANTS ALLOTMENT OF SHARES TERMS OF SUBSCRIPTION QUALIFIED HOLDERS, COMPULSORY TRANSFER AND COMPULSORY REDEMPTION REDEMPTION OF SHARES TOTAL REDEMPTION SWITCHING OF SHARES DETERMINATION OF NET ASSET VALUE VALUATION OF INVESTMENTS TRANSFER AND TRANSMISSION OF SHARES INVESTMENT OBJECTIVES GENERAL MEETINGS NOTICE OF GENERAL MEETINGS PROCEEDINGS AT GENERAL MEETINGS VOTES OF SHAREHOLDERS DIRECTORS TRANSACTIONS WITH DIRECTORS POWERS OF DIRECTORS PROCEEDINGS OF DIRECTORS SECRETARY THE SEAL RETURNS OF CAPITAL DIVIDENDS AND RESERVES EQUALISATION ACCOUNT ACCOUNTS AUDIT EU_BUSINESS -i-

3 INDEX (continued) Page 33. NOTICES WINDING UP TERMINATION OF THE FUNDS INDEMNITY AND INSURANCE RE-USE OF ASSETS DESTRUCTION OF DOCUMENTS ALTERATION OF INSTRUMENT OF INCORPORATION EU_BUSINESS -ii-

4 IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015 INSTRUMENT OF INCORPORATION APOLLO CREDIT FUNDS ICAV AN UMBRELLA SCHEME WITH SEGREGATED LIABILITY BETWEEN SUB-FUNDS 1. INTERPRETATION 1.1 In this Instrument of Incorporation the following expressions shall have the following meanings: Words Accounting Date Accounting Period Act Administration Agreement Administrator Affiliate AIFM Meanings in each year, the date set out in the Master Information Memorandum or Supplement which shall signify the end of an Accounting Period for the ICAV or a Fund where such dates are different, or such other date as the Directors may from time to time decide. a period ending on an Accounting Date and, commencing in the case of the first such period, on the date of registration of the ICAV or the date of approval of the relevant Fund by the Central Bank, and in subsequent such periods, on the day following expiry of the immediately preceding Accounting Period. the Irish Collective Asset-management Vehicles Act any agreement between the ICAV and the Administrator relating to the appointment and duties of the Administrator as amended from time to time subject to the requirements of the Central Bank. a person or company appointed by the ICAV to carry out the day to day administration of the ICAV or, as the context admits, a Fund. shall have the meaning set out in the Master Information Memorandum any person, firm or corporation appointed in accordance with the requirements of the Central Bank and for the time being acting as alternative investment fund manager of the ICAV under AIFMD. AIFM Agreement any alternative investment fund managers agreement between the ICAV and the AIFM pursuant to which the AIFM has been appointed as alternative investment fund manager of the ICAV, as may be amended from time to time in EU_BUSINESS

5 accordance with the requirements of the Central Bank. AIFMD the Alternative Investment Fund Managers Directive (Directive 2011/61/EU) and shall include, where the content so requires, the AIFMD as implemented in Ireland by means of the AIFMD Regulations. AIFMD Legislation AIFMD Level 2 AIFM Regulations AIF Rulebook Affiliated Service Provider collectively the AIF Rulebook, AIFMD, AIFMD Level 2 and the AIFMD Regulations, as appropriate. the Commission Delegated Regulation (EU) No. 231/2013 supplementing AIFMD. the European Union (Alternative Investment Fund Managers) Regulations (S.I. No. 257 of 2013), as may be amended from time to time. the rulebook issued by the Central Bank setting out the conditions imposed on AIF s authorized pursuant to Part XIII of the Companies Act shall have the meaning set out in the Master Information Memorandum. Auditors Bank Regulations Base Currency Benefit Plan Investors Business Day Central Bank Class Clear Days Closed-ended Fund Consulting the Auditors for the time being of the ICAV. Regulations made by the Central Bank under Part 8 of the Central Bank (Supervision and Enforcement) Act 2013 the base currency of account of the ICAV or Fund as specified in the Master Information Memorandum. a Benefit Plan Investor as defined in the Master Information Memorandum. in relation to the ICAV and each Fund such day or days as may be specified in the Master Information Memorandum. the Central Bank of Ireland or any successor thereof. a particular division of Shares in the ICAV or a Fund or, as the context permits, a Series. in relation to a period of notice, the period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect. a Fund with no liquidity for a finite closed-ended period. Shall have the meaning set out in the Master EU_BUSINESS 2

6 Information Memorandum Currency Class Expenses Currency Class Shareholder Dealing Day Depositary Depositary Agreement Directors Distributor Duties and Charges EEA shall have the meaning set out in the Master Information Memorandum. shall have the meaning set out in the Master Information Memorandum. in relation to a Fund, such Business Day or Days as may be specified in the Master Information Memorandum. any person firm or corporation appointed and for the time to provide depositary services to the ICAV in its capacity as depositary of the ICAV. any agreement for the time being subsisting between the ICAV and the Depositary and relating to the appointment and duties of the Depositary and giving the Depositary power to appoint sub-custodians as may be amended from time to time in accordance with the requirements of the Central Bank. the Directors of the ICAV or any duly authorised committee thereof. one or more persons, firms or corporations appointed and for the time being acting as distributor of Shares in the ICAV. in relation to any Fund, all stamp and other duties, taxes, governmental charges, brokerage, bank charges, foreign exchange and/or other dealing spreads, interest, transfer fees, registration fees and other duties and charges whether in connection with the original acquisition or increase of the assets of the relevant Fund or the creation, issue, sale, switch or redemption of shares or the purchase or sale of Investments or in respect of certificates or otherwise which may have become or may be payable in respect of or prior to or in connection with or arising out of or upon the occasion or in the event of the transaction or dealing in respect of which such duties and charges are, or may be, payable, which may include, when calculating Subscription Prices and Redemption Prices, any provision for spreads (to take into account the difference between the price at which assets may be valued for the purpose of calculating the Net Asset Value and the price at which such assets may be acquired or may be sold or realised), but shall not include any commission payable to agents on sales and purchases of Shares or any commission, taxes, charges or costs which may have been taken into account in ascertaining the Net Asset Value of Shares in the relevant Fund. the European Economic Area EU_BUSINESS 3

7 Establishment Expenses FDI FINRA Rules Fund Investment or Investments Investment Holding Vehicle Investment Management Agreement Investment Manager Investor Money Regulations Instrument the establishment expenses incurred by the ICAV in the formation and establishment of the ICAV or a Fund or Class as may be more particularly described in the Master Information Memorandum. financial derivative instruments; contracts that derive their value from the value of an underlying asset, reference rate or index; the rules of the US Financial Industry Regulatory Authority, as amended from time to time. a fund of the ICAV having segregated liability and representing the designation by the Directors of a particular class or classes of Shares as a Fund the proceeds of issue of which are pooled separately and invested in accordance with the investment objective and policies applicable to such Fund and which is established by the Directors from time to time with the prior approval of the Central Bank. any investment which is permitted by the Act and this Instrument. shall have the meaning as set out in the Master Information Memorandum. any investment management agreement made between the ICAV and the Investment Manager relating to the appointment and duties of the Investment Manager as amended from time to time subject to the requirements of the Central Bank. one or more persons, firms or corporations appointed in accordance with the requirements of the AIF Rulebook and for the time being providing investment management or advisory services in relation to the management of the ICAV s Investments. the Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1)) Investor Money Regulations the Instrument of Incorporation of the ICAV as originally adopted or as amended from time to time by Special Resolution. In writing or written written, printed, lithographed, photographed, telexed, telefaxed or represented by any other substitute for writing including any means of electronic communication which may be processed to produce a legible text or partly one and partly another. Manager any person, firm or corporation appointed and for the time being acting as manager to the ICAV under the terms and provisions of the EU_BUSINESS 4

8 Management Agreement. Management Agreement any agreement for the time being subsisting between the ICAV and the Manager in relation to the appointment and duties of the Manager. Master Information Memorandum any master information memorandum or supplement thereto issued by the ICAV from time to time in connection with the purchase of or subscription for Shares of any Class and/or Series. Member Minimum Holding Minimum Initial Subscription Minimum Transaction Size Net Asset Value Net Asset Value per Share New Issues Non-Base Currency Hedges Non-Voting Share a Shareholder. either a holding of Shares in a Fund or Class the value of which by reference to the Net Asset Value per Share is not less than such amount as may be determined by the Directors from time to time or such minimum number of Shares, if any, which must be held by Shareholders in any Fund or Class as may be determined by the Directors from time to time, as specified in the Master Information Memorandum. the minimum value of an initial subscription for Shares in any Fund or Class, as specified in the Master Information Memorandum provided that the minimum amount of such subscription in the ICAV or a Fund shall not be less than 100,000 or its equivalent in another currency (subject to the waiver or reduction provided for in Article 8.5 hereof) and the aggregate of an investor s investments in one or more Funds or Classes or Series may be taken into account, at the discretion of the Directors, for the purpose of satisfying the minimum subscription requirement. the minimum value of subsequent subscriptions, partial redemptions, switches or transfers of Shares in any Fund or Class by an existing holder of Shares in that Fund or a Class as may be determined by the Directors from time to time, as specified in the Master Information Memorandum. the net asset value of the ICAV or a Fund or attributable to a Class (as appropriate) calculated in accordance with and/or pursuant to this Instrument. the net asset value of a Share calculated in accordance with this Instrument. a new issue within the meaning given in the FINRA Rules. shall have the meaning set out in the Master Information Memorandum. a non-voting Share in the capital of the ICAV issued in accordance with the requirements of the EU_BUSINESS 5

9 Central Bank. Offer Price Office Open-ended Fund Open-ended Funds with Limited Liquidity Ordinary Resolution Prime Broker Professional Investor the sum of the Subscription Price and the sales charge (if any) applicable to Shares in a Fund. the registered office of the ICAV. a Fund that provides redemption facilities on at least a quarterly basis, redeems when requested at least 10% of net assets on a monthly basis or 25% of net assets on quarterly basis, and does not impose a redemption fee in excess of 5% of Net Asset Value. a Fund that offers redemption and/or settlement facilities on a less than quarterly basis. a resolution passed by a simple majority of the votes cast by the Members as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV. any person(s), firm(s) or corporation(s) appointed by the ICAV and/or AIFM or the ICAV s delegate and for the time being acting as prime broker for any of the ICAV s Funds. a professional client within the meaning of Annex II of Directive 2004/39/EC (Markets in Financial Instruments Directive). Pro-Rata shall as the context permits be such proportionate allocation or division determined on such basis as the Directors may, in their discretion, determine. Qualifying Investor an investor who is:- (i) a Professional Investor; or (ii) an investor who receives an appraisal from an EU credit institution, a MiFID firm or a UCITS management company that the investor has the appropriate expertise, experience and knowledge to adequately understand the investment in the scheme; or (iii) an investor who certifies that it is an informed investor by providing the following (a) confirmation (in writing) that the investor has such knowledge of and experience in financial and business matters as would enable the investor to properly evaluate the merits and risks of the prospective investment; or (b) confirmation (in writing) that the investor s business involves, whether for its own account or the account of others, the management, acquisition or disposal of property of the same kind as the property of the ICAV. Within the EEA, Shares may only be marketed to EU_BUSINESS 6

10 Professional Investors, unless under the laws of the relevant EEA member state Shares are permitted to be sold to other categories of investors and such investors encompass Qualifying Investors as set out in (ii) or (iii) above. Redemption Price Register Restricted Person Seal Secretary Series Share Shareholder Side Pocket Class Side Pocket Share Special Resolution State Subscription Price United Kingdom United States the price at which Shares can be redeemed, calculated in accordance with Article the register maintained by or on behalf of the ICAV in which are listed the names of Shareholders of the ICAV. a Restricted Person as defined in the Master Information Memorandum. the common seal of the ICAV. any person, firm or corporation appointed by the Directors to perform any of the duties of the secretary of the ICAV. a series of Shares issued in respect of any Class of one or more Funds of the ICAV, as determined by the Directors from time to time. a participating share in the capital of the ICAV, designated in one or more Funds or Classes or Series, issued in accordance with this Instrument. a person who is registered as the holder of one or more Shares. a particular Class of Shares in a Fund as determined by the Directors in accordance with this Instrument. a Share designated in one or more Side Pocket Classes, issued in accordance with this Instrument. a resolution passed by not less than 75 per cent of the votes cast by the Members as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV. Ireland. the price at which Shares can be subscribed for as calculated and determined in accordance with Article the United Kingdom of Great Britain and Northern Ireland. the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction EU_BUSINESS 7

11 US Person Valuation Day Valuation Point a US Person as defined in the Master Information Memorandum. means the Business Day(s) specified in the relevant supplement to the Master Information Memorandum on which the Net Asset Value and Net Asset Value per Share of a Fund is calculated in compliance with the provisions of this Instrument and the Master Information Memorandum, provided that the Directors may declare an alternative or additional Valuation Day or Valuation Days upon advance notice to Shareholders; the time or times on a Valuation Day by reference to which the Net Asset Value shall be calculated as determined by the Directors and specified in the Master Information Memorandum provided that there shall be a Valuation Point in respect of each Dealing Day and at least one Valuation Day per calendar year during a closed-ended period of an Open-ended Fund with Limited Liquidity or a Closed-ended Fund. In this Instrument, all references to the Euro or are to the unit of the European single currency and all references to US Dollars or US$ or USD are to the currency of the United States of America. 1.2 In this Instrument, unless there be something in the subject or context inconsistent with such construction: words importing the singular number shall include the plural number and vice versa; words importing the masculine gender only shall include the feminine gender; words importing persons only shall include companies or associations or bodies of persons, whether corporate or not; the word may shall be construed as permissive and the word shall shall be construed as imperative; all references to a time of day or night shall be to Irish time; references to enactments and to sections of enactments shall include reference to any modifications or re-enactments thereof for the time being in force; and headings and captions in this Instrument are inserted for convenience of reference only and shall not affect the construction or interpretation hereof. 1.3 Where for the purposes of this Instrument or for any other purpose any amount in one currency is required to be converted into another currency the Directors may effect such conversion using such rates as are quoted by such banks or other financial institutions as the Directors may deem appropriate at the relevant time except where otherwise in this Instrument specifically provided. 1.4 Unless specifically defined in this Instrument or the context otherwise requires, words or expressions contained in this Instrument shall bear the same meaning as in the Act but excluding any statutory modification thereof not in force when this Instrument becomes binding on the ICAV EU_BUSINESS 8

12 2. OBJECT 2.1 The sole object of the ICAV is the collective investment of its funds in property and giving members the benefit of the results of the management of its funds. 2.2 Subject to any limits imposed by the AIF Rulebook and any derogations therefrom permitted by the Central Bank, the Directors may exercise all powers of the ICAV to borrow or raise money (including, without limitation, the power to borrow for the purpose of redeeming Shares) or securities and to hypothecate, transfer, mortgage, pledge or charge its undertaking, property and assets or any part thereof and to issue bonds, notes, debentures, debenture stock or other securities whether outright or as security for any debts or obligations of the ICAV. 2.3 Furthermore, the ICAV is entitled to take any action which may seem necessary or useful in order to achieve or to further the corporate purpose on the basis and within the limits of the AIF Rulebook. 3. PRELIMINARY 3.1 The business of the ICAV shall be commenced as soon after the incorporation of the ICAV and authorisation of the ICAV under the Act as the Directors think fit and shall be carried out in accordance with the Act. 3.2 The assets of the ICAV shall belong exclusively to the ICAV and no Shareholder has any interest in the assets of the ICAV. 3.3 The Establishment Expenses payable by the ICAV may in the accounts of the ICAV be carried forward and amortised in such manner and over such period as the Directors may determine and the Directors may at any time and from time to time determine to lengthen or shorten any such period. Any Establishment Expenses of the ICAV shall be allocated between Funds and/or Classes on such basis as the Directors may from time to time in their discretion determine and shall be subject to such adjustment following the establishment of new Funds and/or Classes as the Directors may determine. Any Establishment Expenses attributable to a Fund and/or one or more Classes shall be allocated between Classes on such basis as the Directors may from time to time in their discretion determine and shall be subject to such adjustment following the establishment of new Classes as the Directors may determine. 3.4 The ICAV and/or each Fund and, where expenses or liabilities are attributable specifically to a Class, such Class shall also bear all of its operating costs or, where appropriate, its Pro-Rata share thereof, subject to adjustment to take account of expenses and/or liabilities attributable to one or more Classes, including but not limited to: fees, costs and expenses related to or arising from: the discovery, investigation, development, acquisition or consummation, ownership, maintenance, monitoring, hedging or disposition of investments (including brokerage commissions, clearing and settlement charges, private placement fees, syndication fees, solicitation fees, arranger fees, sales commissions, pricing and valuation fees (including appraisal fees), research fees, underwriting commissions and discounts, interest and commitment fees, investment banking fees, transaction fees, break-up fees, advisory fees, bank charges, other investment costs (including earnouts, delayed compensation or other consideration in respect of any investments) and other closing, execution and transaction costs, custodial, trustee, transfer agent, recordkeeping and other administrative fees, costs and expenses); origination fees, commitment fees; collateral management fees, facility fees, float fees or similar fees; fees, costs and expenses (such as arranger, brokerage, placement, syndication, solicitation or underwriting, agency, origination, collateral management or other fees, discounts, spreads, commissions and concessions) paid to: EU_BUSINESS 9

13 3.4.3 an Affiliated Service Provider (as defined below) or another Apollo Client (as defined below) for services rendered to or in connection with financing provided to issuers of financial instruments; or another person with respect to services rendered by such Affiliated Service Provider; and fees, costs and expenses or other amounts or compensation (including management fees, operating expenses, incentive allocation and/or carried interest) earned by any person or otherwise borne in respect of investments and/or financial instruments that are managed by the Investment Manager or any of its respective Affiliates (including an investment in an Apollo Client) that are acquired by a Fund; any credit facility, guarantee, letter of credit or similar credit support or one or more other similar financing transactions involving any investment; the evaluation of potential investments (irrespective of whether any such investment is ultimately consummated); attending conferences in connection with the evaluation of future investments or business sector opportunities (including the evaluation of potential investments, irrespective of whether any such investment is ultimately consummated); and any other expenses of investments that are not consummated, which may include certain advisory, transaction, closing, consulting and other similar fees paid to the Investment Manager and its Affiliates and other persons; any travel-related expenses related to or arising from the discovery, evaluation, investigation, development, acquisition or consummation, ownership, maintenance, monitoring, hedging or disposition of investments, including potential investments; the fees, costs and expenses incurred in connection with risk management assessments and analyses of a Fund s assets; taxes and other governmental charges incurred or payable by the ICAV or a Fund; fees, costs and expenses of any actuaries, accountants, advisors, auditors, administrators, counsel, appraisers, valuation experts and other service providers that provide services to or with respect to the ICAV or a Fund and legal expenses incurred in connection with claims or disputes related to one or more actual, unconsummated or proposed investments; compensation and other similar expenses of professionals (including Consulting and any industry executives, advisors, consultants, operating executives, subject matter experts or other persons acting in a similar capacity) who provide services to the ICAV or a Fund or a Fund s investments or to issuers of financial instruments (including with respect to potential investments or issuers); fees, costs and expenses incurred in obtaining research and other information for the benefit of a Fund, including information service subscriptions, as well as expenses incurred to operate and maintain market information systems and information technology systems used to obtain such research and other information (such as phone and internet charges); fees, costs and expenses incurred in developing, implementing or maintaining computer software and technological systems for the benefit of the ICAV and EU_BUSINESS 10

14 the Funds, the Shareholders and the relevant Fund s investments (including potential investments); fees, costs and expenses associated with maintaining the ICAV, the relevant Fund and any of its Investment Holding Vehicles, including fees, costs and expenses incurred in the organisation, operation and restructuring of such subsidiary entities, including Subsidiaries; premiums and fees for insurance allocated to the ICAV (including Apollo s group insurance policy, general partner s, directors and officers liability or other similar insurance policies, errors and omissions insurance, financial institution bond insurance and any other insurance for coverage of liabilities to any person or entity that are incurred in connection with the activities of the ICAV) litigation expenses related to the ICAV or a Fund, any investment or issuer of financial instruments (including expenses incurred in connection with the investigation, prosecution, defence, judgment or settlement of litigation) and other extraordinary expenses related to the ICAV or a Fund, any investment or any issuer of financial instruments or any potential investment or issuer (including fees, costs and expenses that are classified as extraordinary expenses under International Financial Reporting Standards); fees, costs and expenses incurred in connection with the preparation of all reports to the Shareholders (including all fees, costs and expenses incurred to audit such reports, provide access to a database or other internet forum and for any other operational, legal, secretarial or postage expenses relating thereto or arising in connection with the distribution of same), and any other financial, tax, accounting or fund administration reporting functions (including expenses associated with the preparation of financial statements and tax returns); fees, costs and expenses of holding any meetings of the ICAV or a Fund, the Shareholders or any conflicts review agent (including accommodation, meal, event, entertainment and other similar fees, costs and expenses in connection with any such meetings); the ICAV s indemnification obligations (including any fees, costs and expenses incurred in connection with indemnifying Indemnified Persons and advancing fees, costs and expenses incurred by any such Indemnified Persons in defence or settlement of any claim that may be subject to a right of indemnification); fees, costs and expenses (including legal fees and expenses) incurred to comply with any applicable law, rule or regulation (including regulatory filings or other expenses of the ICAV, the AIFM or the Investment Manager, including Form PF filings and any compliance or filings related to the AIFMD) or incurred in connection with any governmental inquiry, investigation or proceeding involving the ICAV or a Fund, including the amount of any judgments, settlements or fines paid in connection therewith); fees, costs and expenses incurred by the AIFM, the Investment Manager and their respective Affiliates and of counsel to, accountants for and agents of the ICAV, the AIFM, the Investment Manager or their respective Affiliates, including travel (which may include expenses for first class or business class travel), meal and entertainment expenses of personnel of the AIFM, the Investment Manager or their respective Affiliates and their advisors, in each case, incurred in connection with compliance with applicable laws or regulations and the offering of Shares (including the preparation of Other Agreements and the fees, costs and expenses described in clause (xvii) below), except, in each such case, those incurred in connection with the commencement of operations of the ICAV and the Funds, which shall form part of the Organisational Expenses; fees, costs and expenses related to a sale, assignment, pledge or transfer of a Shareholder s Shares or a Shareholder s redemption of Shares and withdrawal EU_BUSINESS 11

15 from a Fund or admission of any new Shareholder to a Fund as permissible under the Instrument (but only to the extent not paid by the Shareholder and/or the purchaser, assignee, pledgee, transferee or redeeming Shareholder, as applicable); fees, costs and expenses incurred in connection with any amendments, modifications, revisions or restatements to the constituent documents of the ICAV, the AIFM or the Investment Manager; fees, costs and expenses incurred in connection with distributions (including, for the avoidance of doubt, regular distributions made to distributing share classes of a fund) to the Shareholders; interest on, and fees, costs and expenses arising out of a Fund s borrowings and indebtedness (including the fees, costs and expenses incurred in obtaining lines of credit, loan commitments and letters of credit for the account of the relevant Fund), securing the same by mortgage, pledge or other lien on any assets of a Fund or otherwise encumbering assets in connection with or in furtherance of the acquisition of all or a portion of or the financing of an investment; expenses related to financial derivative instrument transactions entered into by the ICAV, any Fund or Investment Holding Vehicle; liabilities and obligations of the ICAV, any Fund, Investment Holding Vehicle or applicable obligor, including any principal and other amounts owing or which may become due under any credit facility or any related guarantee, security or other form of indebtedness; fees payable to the Investment Manager; fees payable to the AIFM; fees payable to the Depositary; fees payable to the Administrator; fees, costs and expenses associated with administering and operating the ICAV and the Funds, preparing and maintaining the books and records of the ICAV and each Fund, including internal costs that the Investment Manager may incur to produce the ICAV and each Funds official books and records, external costs in cases where the Investment Manager hires a third-party administrator to maintain the ICAV and each Funds official books and records and any costs of the Investment Manager to oversee and manage such third-party administrator and any Investment Holding Vehicles (as defined below), including fees and expenses incurred in the organisation of Investment Holding Vehicles; fees of brokers (including prime brokers), custodians, and administrators; expenses incurred in obtaining, maintaining or enhancing systems, the data needed to run and operate systems, risk management and other information, including information service subscriptions, utilised with respect to a Fund s investment program, including phone and internet charges; fees, costs and expenses incurred in connection with the dissolution, winding up and termination of the ICAV, a Fund, an Investment Holding Vehicle or Subsidiary; any Currency Class Expenses; EU_BUSINESS 12

16 all similar expenses in connection with feeder entities established by the Investment Manager or any of its Affiliates and Investment Holding Vehicles; all fees and expenses of the Directors; and each Fund s attributable share of the foregoing categories of expenses that are incurred by the Fund Entities (with the required changes), and the foregoing categories of fees, costs, expenses and other liabilities will be Operating Expenses regardless of whether the person or entity providing or performing the service or output giving rise to such fees, costs, expenses or other liabilities is the AIFM, the Investment Manager or any of their Affiliates or a third party. in each case plus any applicable value added tax. All recurring expenses will be charged against current income or against realised and unrealised capital gains, or, if the Directors so determine, against the capital or assets of the ICAV in such manner and over such period as the Directors may from time to time decide. 4. DEPOSITARY, AIFM AND MANAGER 4.1 Depositary The ICAV shall entrust its assets to the Depositary for safe-keeping The Depositary shall be responsible for the safe custody of all the Investments of the ICAV (and its subsidiaries), to perform its duties prescribed by the Act, AIFMD, the AIFMD Regulations, the Master Information Memorandum and all other documents relating to the ICAV and to perform such other duties upon such terms and conditions including the right to remuneration payable by the ICAV and to appoint sub-custodians as the Directors may from time to time (with the agreement of the said Depositary) determine The Depositary shall be a depositary approved for the purpose by the Central Bank and the terms of the Depositary Agreement shall be in accordance with the requirements of the Central Bank. Without prejudice to the generality of the foregoing, the Depositary will be liable to the ICAV and its Shareholders in accordance with the requirements of AIFMD, the AIFMD Regulations and the Depositary Agreement as may be amended from time to time. Where the laws of a jurisdiction requires that certain financial instruments are held in custody by a local entity and there are no local entities that satisfy the requirements specified in Regulation 22(11)(b)(iv) of the AIFMD Regulations, the Depositary may discharge itself of liability provided that the conditions of Regulation 22(14) of the AIFMD Regulations are met The terms of appointment of any Depositary may authorise such Depositary to appoint (with powers of sub delegation) sub custodians, nominees, agents or delegates at the expense of the ICAV or otherwise as determined by the Depositary and the ICAV In the event of the Depositary desiring to retire or the ICAV desiring to remove the Depositary from office, the Directors shall use their reasonable endeavours to find a corporation willing to act as depositary and, subject to the prior approval of the Central Bank, the Directors shall appoint such corporation to be Depositary in place of the former Depositary. The Depositary may not retire or be removed from office unless and until a new depositary approved by the Central Bank has been appointed as depositary in place of the former Depositary with the prior approval of the Central Bank If within a period of 90 days or such longer or shorter period as set out in the Depositary Agreement and in accordance with the requirements of the Central EU_BUSINESS 13

17 4.2 Manager 4.3 AIFM Bank, from the date on which (a) the Depositary notifies the ICAV of its desire to retire in accordance with the terms of the Depositary Agreement and has not withdrawn notice of its intention to so retire; (b) the appointment of the Depositary is terminated by the ICAV in accordance with the terms of the Depositary Agreement, or (c) the Depositary ceases to be qualified under Article 4.1.3, a new depositary acceptable to the ICAV and approved by the Central Bank has not been appointed to act as depositary to the ICAV, the ICAV s secretary shall forthwith at the request of the Directors (such request to be made in a timely manner), convene an extraordinary general meeting of all Shareholders at which there shall be proposed an Ordinary Resolution to wind up the ICAV in accordance with the provisions of Article 36 and revocation of the ICAV s authorisation shall be sought from the Central Bank. Upon the revocation of the ICAV s authorisation from the Central Bank, the Depositary s appointment shall terminate The Central Bank may replace the existing Depositary with another Depositary in accordance with the provisions of the AIF Rulebook The ICAV may (in accordance with the requirements of the Central Bank) appoint any person, firm or corporation to act as Manager to the ICAV, in accordance with the terms of the Management Agreement and may entrust to and confer upon the Manager so appointed any of the relevant powers, duties, discretions and/or functions exercisable by the Directors, upon such terms and conditions including the right to remuneration payable by the ICAV and with such powers of delegation and such restrictions as they think fit either collaterally with or to the exclusion of their powers. In the event that the Manager shall resign or be dismissed or its appointment shall otherwise terminate, the Directors shall use their best endeavours to appoint some other person, firm or corporation, approved by the Central Bank to act as Manager in its place The Central Bank may replace an existing Manager with a new replacement Manager The ICAV may appoint any person, firm or corporation to act as AIFM to the ICAV. The AIFM appointed by the ICAV shall be a person approved by the Central Bank and terms of any AIFM Agreement shall be in accordance with the requirements of the Central Bank. Under the terms of the AIFM Agreement, the Directors may entrust to and confer upon the AIFM so appointed any of the relevant powers, duties, discretions and/or functions exercisable by the Directors, upon such terms and conditions including the right to remuneration payable by the ICAV and with such powers of delegation and such restrictions as they think fit either collaterally with or to the exclusion of their powers The AIFM must make available such information as may be required pursuant to the AIFMD Regulations to prospective Members The terms of appointment may authorise an AIFM to delegate any of its functions and duties to any person or persons so appointed, provided that such appointment or appointments shall first have been approved by the ICAV and otherwise be in accordance with the AIFMD Regulations In the event that the AIFM shall resign or be dismissed or its appointment shall otherwise terminate, the Directors shall use their best endeavours to appoint some other person, firm or corporation that is authorised to act as an AIFM, to be AIFM of the ICAV in place of the former AIFM. The appointment of a replacement AIFM is subject to the approval of the Central Bank and the EU_BUSINESS 14

18 4.4 Miscellaneous Appointments Central Bank may, inaccordance with the provisions of the AIF Rulebook, replace the AIFM with another AIFM The ICAV or the AIFM may appoint one or more persons, firms or corporations to act as Prime Broker for the purpose of providing margin financing, clearing, settlement and to perform such other duties upon such terms and conditions including the right to remuneration and transfer and rights of re-use of the assets of the ICAV as the ICAV or the AIFM may from time to time determine The ICAV may (in accordance with the requirements of the Central Bank) appoint any person, firm or corporation to act as Administrator, Investment Manager, investment advisor, distributor, and/or sub-investment manager or advisor to the ICAV or a Fund as the context permits. 5. SHARE CAPITAL 5.1 The ICAV may issue Shares subject to and in accordance with this Instrument, its Master Information Memorandum, the Bank Regulations, the requirements of the Central Bank and the Act. 5.2 The share capital of the ICAV shall be divided into share capital of 500,000,000,000 ordinary Shares of no par value and shall at all times be equal to value for the time being of the issued share capital of the ICAV. 5.3 The ICAV may issue Shares as fully paid up, or subscribed and partly paid up, in accordance with this Instrument, its Master Information Memorandum, the Bank Regulations, the requirements of the Central Bank and the Act. 5.4 The liability of the Members shall be limited to the amount, if any, of unpaid on the Shares respectively held by them. 5.5 The actual value of paid up share capital of the ICAV shall at all times be equal to the value of the assets of the ICAV after deduction of its liabilities. 5.6 The Directors are hereby generally and unconditionally authorised to exercise all the powers of the ICAV to issue Shares in the ICAV on such terms and in such manner as they may think fit. 5.7 The Directors may allot and issue Shares in the ICAV to such persons on such terms and conditions and at such times and in such manner as they may think fit. Without prejudice to any special rights previously conferred on the holders of any existing Shares or Class, any Share in the ICAV may be issued with such preferred, deferred or other rights or restrictions, whether in regard to dividends, voting, return of capital or otherwise, as the Directors may from time to time determine. The Shares shall be divided into such Funds and may be further divided into such Classes as the Directors may from time to time determine and such Funds and Classes shall have such names or designations as the Directors may from time to time determine. Where the Directors determine to divide the Shares into Funds, each Fund shall have segregated liability. On or before the allotment of any Shares, the Directors shall determine the Series or Class or Fund in which such Shares are designated. All monies payable in respect of a Share (including without limitation, the subscription and redemption monies and dividends in respect thereof) shall be paid in the currency in which the Share is designated or in such other currency or currencies as the Directors may determine either generally or in relation to a particular Fund or Class. In order to facilitate the equitable application to the holding of each Shareholder of any performance fee payable in respect of a Class or for such other purposes as the Directors may from time to time determine, the Directors may create Series of Shares within that Class. Each Series of Shares may be re-designated and converted into another Series at such time and in such circumstances as the Directors may determine and disclose as outlined in the Master Information Memorandum EU_BUSINESS 15

19 5.8 The ICAV shall only launch Share Classes at a fixed price after the initial offer period where it has been confirmed to the Central Bank that existing Shareholders in the ICAV will not be prejudiced. 5.9 Without prejudice to the generality of this Article, the Directors may, subject to this Instrument and in accordance with the requirements of the Central Bank, create and issue at their discretion from time to time, a new Class or Classes of Shares (each a Side Pocket Class ) to which assets and liabilities of a Fund or a Class may be allocated at the discretion of the Directors as investments that are illiquid or otherwise difficult to value or realise ( Illiquid Investments ) plus such additional cash or other assets representing a reserve for related commitments and contingencies as the Directors in their discretion determine. Shares in such Side Pocket Class ( Side Pocket Shares ) shall be redeemable by the ICAV and/or by the holders thereof only when so determined by the Directors. This may involve the Directors effecting a Pro-Rata reduction in the number of Shares held by a Shareholder attributable to the relevant Fund or Class excluding the assets and liabilities attributable to the Side Pocket Class and creating for the benefit of such Shareholder a corresponding Pro-Rata interest in the Side Pocket Class. The value of assets and liabilities attributed to a Side Pocket Class shall be determined by the Directors in a manner consistent with this Instrument and/or in accordance with the Master Information Memorandum. Unless otherwise described in this Article, a Side Pocket Class shall have the same rights and characteristics as any other Class. Shares in classes other than the Side Pocket Class shall not participate in the assets or liabilities attributable to Shares in the Side Pocket Class and the assets and liabilities attributable to the Side Pocket Class shall be segregated from and shall not form part of the other assets of the Fund. The liabilities of or attributable to a Side Pocket Class shall be discharged solely out of the assets of that Side Pocket Class Without prejudice to the generality of this Article, the ICAV may, in the sole and absolute discretion of the Directors, subject to this Instrument and in accordance with the requirements of the Central Bank, participate in New Issues, and the Directors may take any and all action necessary to ensure compliance by the ICAV with the FINRA Rules as and when applicable. In case New Issues are invested in or acquired by the ICAV, the ICAV may establish new Classes of Shares to be held by persons not being restricted persons under the rules adopted by FINRA ( Restricted Persons ). The New Issues shall be deemed to be assets or liabilities (as the case may be) of the ICAV (either directly, indirectly and/or beneficially) however the gains/losses on and the costs of the New Issues will accrue solely to the relevant Class or Classes of Shares held by Shareholders who are not Restricted Persons, unless otherwise determined by the Directors, in accordance with and to the extent permitted under the rules adopted by FINRA Without limiting the generality of 4.8 above, in the event that the ICAV, in the sole and absolute discretion of the Directors, participates in New Issues and there is a Class which is restricted from participating in such New Issues, a credit equal to the commercial rate of interest (as determined by the Directors in their absolute discretion) on the funds invested in New Issues or some other credit as specified in the Master Information Memorandum, may, in the sole discretion of the Directors, be allocated to such Class which is restricted from participating in New Issues and a matching debit may be allocated the Class which is not restricted from participating in New Issues The Directors may delegate to any duly authorised Director or officer of the ICAV, or to any duly authorised person, firm or corporation the duties of accepting the subscription for and receiving payment for new Shares The Directors or their duly authorised delegates may in their absolute discretion refuse to accept any application for Shares in the ICAV or to accept any application in whole or in part Subject to the provisions of the Act and the requirements of the Central Bank, Shares of any Fund may be acquired, by way of subscription or transfer for consideration, or redeemed, by another Fund for the purpose of cross investment by one Fund to another EU_BUSINESS 16

20 5.15 In the event that the ICAV establishes a Fund or Funds which are intended to be Shari ah compliant, subject to the provisions of the Act and in accordance with the requirements of the Central Bank, any provisions of this Instrument which are non-shari ah compliant shall be disapplied and replaced with appropriate provisions as set out in the Master Information Memorandum The ICAV may from time to time by Ordinary Resolution increase its capital by such amount as the resolution shall prescribe On any issue of Shares, the ICAV may pay any placement, brokerage fees or commissions No person shall be recognised by the ICAV as holding any Shares on trust and the ICAV shall not be bound by or recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Shares or (except only as this Instrument otherwise provides or as by law required) any other right in respect of any Share, except an absolute right of title thereto of the registered holder, or the bearer of a share warrant. 6. CONSTITUTION, RIGHTS, ASSETS AND LIABILITIES OF THE ICAV 6.1 The ICAV shall, at all times, have a registered office in the State to which all communications and notices may be addressed. 6.2 The ICAV is established as an umbrella fund having variable capital and segregated liability between its Funds, each Fund may comprise one or more Classes. Funds of the ICAV may be established as either Open-ended Funds, Open-ended Funds with Limited Liquidity, or Closed-ended Funds as such terms will be defined in the Master Information Memorandum or such other categories as may be added by the Central Bank from time to time. The duration of any Closed-ended Fund shall be disclosed in the relevant Master Information Memorandum in accordance with the requirements of the Central Bank. 6.3 The ICAV is comprised of separate Funds, which may comprise one or more Classes. The Directors may from time to time establish with the prior approval of the Central Bank, additional Funds and/or in accordance with the requirements of the Central Bank, designate additional Classes or Series and issue Shares in such Funds, Classes or Series. 6.4 Subject to the requirements of the Central Bank, the Directors may in their absolute discretion differentiate between the Shares in any Class or Fund. 6.5 The rights attaching to any Class or Fund may, whether or not the ICAV is being wound up, be varied or abrogated with the consent in writing of the holders of three-fourths of the issued Shares or of that Class or Fund, or with the sanction of a Special Resolution passed at a separate general meeting of the Shareholders of that Class or Fund. To every such separate general meeting the provisions of this Instrument relating to general meetings shall apply provided that the necessary quorum at any such meeting (other than an adjourned meeting) shall be two Shareholders holding or representing by proxy Shares of the Fund or Class in question and, at an adjourned meeting, one Shareholder holding Shares of the Fund or Class in question or his proxy. The chairman of a general meeting of a Fund or Class or any holder of Shares of a Fund or Class present in person or by proxy at a general meeting of a Fund or Class may demand a poll. 6.6 The rights conferred upon the holders of the Shares of any Fund or Class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that Fund or Class, be deemed to be varied or abrogated by the creation, allotment or issue of further Shares ranking pari passu therewith or subsequent to them, the redemption of Shares of any Class of the ICAV, by the passing of a Director s resolution to change or vary any investment objective, investment technique and strategy, investment restriction and/or investment policy in relation to a Class, any modification of the fees payable to any service provider by the ICAV, or any other change or variation EU_BUSINESS 17